Revised C.A.R. 3.4 and D&N Appeals

Jurisdictional Requirements C.A.R. 3.4(a) and (b) A final, appealable order A timely filed notice of appeal Standing

Finality and Appealability Part 1 General rule: A final, appealable order or judgment is one that ends the action, leaving nothing further to be done to determine the rights of the involved parties. People in Interest of H.R., 883 P.2d 619, 620 (Colo. App. 1994). Example: Final order of permanent legal custody. §

Finality and Appealability Part 2 Not-so-general rule: An order or judgment is also final and appealable if a statute or case law says that it is. Examples: The adjudicatory order is final and appealable after the entry of the dispositional order. § (2)(c). The dispositional order is a final, appealable order. People in Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996). And an order refusing to terminate parental rights is a final, appealable order. § (2)(b).

Finality and Appealability Part 3 Common appealable orders are listed in C.A.R. 3.4(a). They now include: An order terminating parental rights OR an order refusing to terminate parental rights. § (2)(b). An order decreeing a child to be dependent and neglected (also known as an adjudicatory order or decree). § (2)(c). An order allocating parental responsibilities under § (6). A final order concerning the reinstatement of the parent-child legal relationship under § Final orders of permanent legal custody entered pursuant to § or §

Finality and Appealability Form of the Order An order that is final in substance is not final in form until it is Written, signed, and dated. C.R.C.P. 58(a). An unsigned minute order is not final for purposes of appeal.

Timeliness General rule: The notice of appeal and designation of transcripts must be filed within 21 days after the entry of the judgment, decree, or order from which the appeal is taken. C.A.R. 3.4(b)(1). A timely filed C.R.C.P. 59 motion will the toll the time within to file the notice of appeal. C.A.R. 3.4(b)(1); C.R.C.P. 59. Helpful definition: Pursuant to C.R.C.P. 58, an order is “entered” when it has been written, signed, and dated, and the clerk has entered it on the court’s register of actions as provided in C.R.C.P. 79(a).

Timeliness When Does the Clock Start Running? If notice of the entry of the order is transmitted to the parties by mail or E-Service, the time for filing the notice of appeal begins when the notice is mailed or E-Served. C.A.R. 3.4(b)(1).

Timeliness Late Filed Notices of Appeal The time for filing a notice of appeal will not be extended except upon a showing of good cause, not excusable neglect, pursuant to C.A.R. 2 and C.A.R. 26(b). C.A.R. 3.4(b)(2). Based on the “unique circumstances exception” the Court of Appeals has the authority to accept notices of appeal beyond the Court’s 84 day jurisdictional limit, although the exception is rarely applied and only in extreme circumstances. People ex rel. A.J.H., 134 P.3d 528, (Colo. App. 2006).

Timeliness Special Cases The adjudicatory order is not a final, appealable order until the dispositional order is issued and the appeal must then be filed within 21 days of service of the dispositional order. § (2)(c); People in Interest of C.L.S., 934 P.2d 851, 854 (Colo. App. 1996).

Timeliness Special Cases An order entered after adjudication and disposition, but prior to ruling on a motion to terminate the parent-child legal relationship, is not a final, appealable order. People in Interest of P.L.B., 743 P.2d 980, 982 (Colo. App. 1987) (change in a child’s placement, subject to the court’s periodic review); E.O. v. People, 854 P.2d 797, 801 (Colo. 1993) (approval of an amended treatment plan).

Timeliness Special Cases An order terminating parental rights of one parent or of one child is a final and appealable order even if the status of other children remain unresolved, or if the rights of another parent remain unresolved. § (2)(b). A parent may not wait until the rights of all parties are resolved to file an appeal. People in Interest of A.E., 994 P.2d 465, (Colo. App. 1999).

Timeliness Magistrate Orders in D&N Appeals If a magistrate issues an order in a D&N proceeding (Article 3 of Title 19) further appellate review is BARRED absent a timely filed petition for district court review. § (5.5). A party must present an issue to the district court in a petition for review before that issue may be raised in the Court of Appeals. § (5.5); People ex rel. K.L.-P., 148 P.3d 402, 403 (Colo. App. 2006).

Timeliness Magistrate Orders in D&N Appeals District court review must be sought within 5 days after receiving notice of the magistrate’s ruling. § (5.5); C.S. v. People, 83 P.3d 627, (Colo. 2004). The notice of appeal must be filed within 21 days after entry of the district court’s order. In juvenile cases, the district court may accept a petition for review of a magistrate’s order beyond the statutory time limit upon a showing of excusable neglect. C.S. v. People, 83 P.3d 627, (Colo. 2004). This is an exception to the general rule and does not apply to review of a magistrate’s order outside of proceedings under Title 19, the Children’s Code.

What if something goes WRONG ? Motions Practice & Orders to Show Cause If a party believes that the Court of Appeals lacks jurisdiction over part or all of an appeal, that another party lacks standing to bring an appeal, or that some other issue should be addressed before the merits of the appeal are considered, the party may bring the matter to the attention of the Court by filing an appropriate motion. C.A.R. 27. If the Court itself identifies a possible problem with an appeal, the Court may issue an Order to Show Cause requiring the issue to be addressed.

What if something goes WRONG ? Resolution of Motions & Orders to Show Cause If the issue cannot be immediately resolved, then, depending on the nature of the issue and the response to the motion or show cause order, the issue may be referred to the Chief Judge of the Court of Appeals, or to the Motions Division, for a decision. In some cases, resolution of the issue may be deferred to the division that will address the merits of the appeal.

Who must file the Notice of Appeal? If a respondent parent is appealing and he or she was represented by counsel in the trial court, it is TRIAL COUNSEL’S obligation to ensure that a timely notice of appeal is filed. Note, however, that this obligation is met if APPELLATE COUNSEL files a notice of appeal. C.A.R. 3.4(b)(4). If a self-represented party is appealing, the party himself or herself must file the notice of appeal. C.A.R. 3.4(b)(4).

What must the Notice of Appeal include? A Notice of Appeal and Designation of Transcripts (form JDF 545 or party may draft his or her own) must include: (1)Identification of the party or parties initiating the appeal; (2)Identification of the judgment, decree, or order from which the appeal is taken; (3)The date the judgment, decree, or order was signed by the trial court; (4)A certificate of service in compliance with C.A.R. 25; and (5)A copy of the judgment, decree, or order from which the appeal is taken. C.A.R. 3.4(c).

What must the record include? The record on appeal MUST include the trial court file, including all exhibits. No designation of record is necessary for the trial court file and exhibits. C.A.R. 3.4(d)(1). The record on appeal MAY also include any transcripts designated and ordered by the parties. C.A.R. 3.4(d)(1). Within seven days after service of a Notice of Appeal and Designation of Transcripts, any appellee may file a Supplemental Designation of Transcripts. C.A.R. 3.4(d)(4).

Briefs Timing Old rule: The Petition on Appeal was due 21 days after the Notice of Appeal and Designation of Record was filed. New rule: The Opening Brief is due 21 days after the record is filed. C.A.R. 3.4(f)(1).

Briefs Caption and Size Old rule: Only a Petition on Appeal and a Response to the Petition were permitted. Both the Petition and the Response were limited to 20 pages, unless they contained no more than 6300 words. New rule: An Opening Brief, Answer Brief, and Reply Brief are permitted. The Opening Brief is limited to 7500 words, excluding any attachments or addenda; the Answer Brief or cross-appeal Opening/Answer Brief is limited to 7500 words unless it is a combined Answer Brief addressing the arguments of more than one appellant, in which case it is limited to 9500 words. Reply Briefs are limited to 5700 words. C.A.R. 3.4(f), (g), (h).

Briefs Format The Opening Brief, Answer Brief, and Reply Brief are required to comply with C.A.R. 32. C.A.R. 3.4(f), (g), (h).

Briefs Content Old rule: Briefs were very streamlined. No table of contents, table of authorities, or citations to the record were required. New rule: Briefs must include a table of contents and table of authorities, and appropriate references to the record. In the Opening Brief, a summary of the arguments presented is required, and each of the arguments must include a statement of the applicable standard of review and a statement of whether the issue was preserved. C.A.R. 3.4(f)(1). The Answer Brief must state whether the appellee agrees with the appellant’s statements. C.A.R. 3.4(g). The new format generally mirrors C.A.R. 28.

Indian Child Welfare Act (ICWA) Old rule: Parties were not required to address ICWA compliance unless it was raised as an issue in the appeal. New rule: The Opening Brief must include a statement of compliance with ICWA, with citations to the locations in the record that document ICWA compliance, such as copies of ICWA notices that were sent to the child’s tribe(s) or potential tribe(s), and the Answer Brief must contain a statement of whether the appellee agrees with the appellant’s statements concerning ICWA compliance, and if not, why not. C.A.R. 3.4(f)(1)(E); C.A.R. 3.4 (g)(2).

Supplemental Briefing Old rule: Former C.A.R. 3.4 expressly provided that the Court of Appeals could set the case for supplemental briefing on issues raised by the parties or “noticed by the court.” New rule: Revised C.A.R. 3.4 does not include an express provision authorizing supplemental briefing, although the Court retains inherent authority to order supplemental briefing when appropriate.

Oral Argument Old rule: Parties were required to request oral argument no later than the date on which the petition on appeal or response was due. New rule: Parties must request oral argument no later than 7 days after briefs are closed.